Michael Kirk (1996):
The Role of Land Tenure and Property Rights in Sustainable Resource Use: The Case of Benin

Executive Summary

The objective of the study is, using Benin as an example, to work out the different forms of traditional autochthonous land tenure and State land legislation as well as to evaluate the existing land tenure systems as basic conditions for a sustainable resource management. On this basis, the need for external contributions for the introduction of reform processes aimed at environmental goals must be identified, and practicable starting points for a process-oriented and participatory cooperation in the framework of institutional development in environment must be worked out.

For the large majority of the population of Benin, above all in rural areas, the allocation and transfer of natural resources is still controlled and guided by autochthonous land tenure institutions. The respectively applicable land tenure practices thus decide about sustainable resource management, or as well about the degradation and destruction of natural resources. Fundamental customary principles and institutions for resource utilization actually are questioned and undermined: land as common property which merely allows individual usufructuary rights, the ban on land sales or the strong social cohesion of owner groups which makes sanctions in the case of breaking rules effective.

Population growth, migration, new agricultural technology, transhumant animal husbandry and also the rising economic value of land influence the relative significance of institutional rules which determine access to land and other resources as well as their transfer: the clearing of land, the allocation of village land reserves, the loan of land lose in importance; cash tenancy and share-cropping, mortgaging of land and in particular access through inheritance and through sale are becoming significant.

These general developments in property rights to resources apply not only to Benin but also to other West African countries. However, regionally specific features in land tenure practice should not be underestimated even in small countries like Benin. Northern Benin illuminates land tenure and resource use through the encroachment of agricultural land into pasture grounds as well as a changing relationship between agriculturalists and transhumant livestock keepers; locations in the Centre of the country show the effect of municipal growth on the surrounding countryside as well as on the transition from autochthonous land tenure to a market for land and new forms of utilization. Villages in Southern Benin demonstrate the problem of unclearly defined and uncertain property rights and their impact on the destruction of resources as well as the conflicts between State rights and autochthonous institutions.

The State land legislation shows a great continuity in its central aspects which reaches back to colonial origins. This is valid for the entry into the land registry which alone assures a legally usable right of ownership recognized and protected by the State. As well the basic principle of State ownership of unregistered land with the consequence of justification of entry for all interested resource users also 'strangers' and the following erosion of local common resource protection. With the promotion of co-operative forms and state farms Benin has put new accents into land legislation since Independence. Parts of the legislation were cancelled after democratisation so that there is a discontinuous development in the legal framework.

After the beginning of democratisation in Benin in 1989, new accents of a particular inclusion of problems of environmental destruction and its preservation in legislation and policy can be identified: the structural adjustment programs take into account the new dimension 'environment' in the face of growing conflicts about land rights, the overexploitation of land and the degradation of the urban environment. Further the founding of a Ministry of the Environment the work of which is closely oriented to the programmatic framework of the National Environmental Action Plan from 1993.

The Environmental Action Plan shows that land tenure and resource protection are thus in Benin by far not only domains of State organisations. Important involved actors and institutions in the forming of land tenure regulations and resource protection are autochthonous institutions whose strengths and limits are discussed.

Ministries doubtlessly play a decisive role. For the factor land alone, the legislative and administrative responsibilities are spread out over a variety of Ministries. There is an urgent need for coordination and limitation of tasks where parallel work or overlapping occur. Within the territorial administration the biggest influence comes without doubt from governor and district commissioners which through local decrees and regulations influence the rights of access to resources between locally involved parties (peasants, livestock keepers) and the proceedings in conflict arbitration.

The number of local committees for resource management and arbitration of conflicts has been incomprehensible. One must differentiate between those implemented by decree 'from above' and those which are the result of self-help, partially promoted by development cooperation. NGOs are beginning to get involved in the interests of the landless or disadvantaged women (legal assistance in court cases) in the South of the country. With democratisation and structural adjustment programs the significance of international donors is grown significantly.

The inadequacies of the current land tenure system is causing environmental problems. Three regional case studies demonstrate fundamentally common ground in relation to property rights and resource management: the diminishing ability of local institutions at the village level to influence group members' resource utilization, growing conflicts between the various parties, a decreasing potential to be able to deal with such conflicts only with models for solution which were relatively successful in the past, a decision vacuum and legal uncertainty since the State authorities offer no or unsatisfactory capacities to deal with conflicts.

The registration of ownership titles takes in no way into account the socio-cultural and economic situation of the population: the procedure is complicated, time consuming, expensive, and centralized. Thus the most important Benin land regulation act achieves a very small minority of citizens especially in rural Benin. It builds up an ever growing gap between everyday informal land sales practices and legal requirements.

For a potential buyer a local informal land register as a source of information does not exist, and the State register in Cotonou offers likewise no help. The cost of getting information is high and individual planning security is not settled. Above all non-locals can only judge with difficulty which disputed claims and conflicts they 'inherit' with purchase. Investments in soil improving measures and trees are connected to a risk. The need for legal security on a less formalised level, accessible to all is not achieved, rather a grey area with unclearly defined property rights is supported.

The described uncertainty over rights and the hampering of investments appear aggravatedly with all forms of lending, mortgaging of land and tenancy which will gain further significance as land tenure institutions in the South in future. The duration of contracts is consciously not fixed, users are left in the dark about their planning horizon. Immigrants, women and young people are more affected than locals, men and elder. The terms of leasing land vary strongly and are frequently changed.

The significance of trees for land tenure is more central than ever. Trees establish rights to land; their planting is seen more and more as a sign of the legal confirmation of the acquisition of land and land ownership. In the case of self cultivation of landed property there is a number of incentives for the adoption of agro-forestry systems. For non-owners greater incentives can only be reached through a long-term change of behaviour on the part of the landlords (to allow the planting of trees and guaranty longer leasing periods, to participate in the investment in trees).

In view of the increasing scarcity of resources and unclear and contradictory property rights, the conflicts between involved actors over resources are increasing: between autochthonous peasants about field limits and the contesting of land sales, between local and immigrant peasants about the tacit refusal to give land over to immigrants and terms of tenancy contracts and between peasants and transhumant animal keepers. Common to the named categories is that the local authorities are already terribly overburdened to solve these disputes, and the State is being given an ever increasingly important role as protagonist in dealing with disputes without being able to do them justice.

The fiercest conflicts, however, arise between agriculturalists and transhumant cattle keepers. The generation-long tried and proven institutional regulations between them are becoming obsolete since the mutual dependence which establishes them no longer exists. Farmland is encroaching into potential grazing land, water points and paths of trespassing are blocked, damages of crops by animals occur daily.

State law offers no channel of appeal to which the animal keepers can turn. Laws concerning animal husbandry do indeed exist, including veterinarian, transnational transhumance and forestry regulations. It is scarcely possible to comprehend all the currently dispersed legal regulations. So it is not puzzling that the laws are even less known by the population and the local administration.

In the South, the aggravated conflicts over land and resource utilization are increasingly exemplified in the problem of former State farms and cooperatives. Through the application of laws for the creation of rural development perimeters and agricultural co-operatives, large oil palm plantations arose. The unscrupulous expropriation of land was the consequence. With the breakdown of the Marxist State in 1989 these plantations build up an enormous amount of tenurial and socially explosive material and became a measuring stick for the State's will for changes in land tenure policy. In the face of the bad state of many plantations, there is resistance in the Benin Government concerning a rapid restitution to former land owners. With that they depict a growing challenge and also offer chances for new agricultural methods which care for resources. A long-term solution is only possible when property rights and resource protection are consciously seen in their interrelatedness.

At present, environmental problems in Benin are still concentrated in rural areas. The main part of the social costs of environmental degradation can be attributed to erosion damage, a diminishing tree vegetation and the deterioration of soil fertility. Clearly defined property rights and security of investment are at best necessary but not sufficient preconditions for resource preservation as long as no incentives exist to adopt the necessary agro-technical and organisational innovations. Thus there is a strong interrelatedness between land tenure, resource protection and agricultural policy in general and agricultural research in special.

The urban share of the population is growing quickly so that urban land tenure and urban environmental problems are rapidly gaining significance. Urban-oriented land tenure is based on the law concerning permission of residence. There is the misunderstanding that such a permission establishes private exclusive property rights. Legal security is presumed which does not exist as only the purchase of such a plot from the State and a land registry entry would establish private ownership.

On the other hand in urban environs there is a relation between the unwillingness to invest in the preservation of environmental resources and insecure property rights to land. Legal uncertainty is dominant since a latent danger of expropriation of land by the State exists when land is needed for other purposes (streets, industry, etc.). In view of these legal conditions the idea of an active contribution of the citizen in road construction, water supply and above all waste disposal is still not widespread. Nonetheless towns are taking increased efforts to use land as a secure base for raising of communal taxes. In order to be able to deliver a high tay-payer honesty and plausible reasons for environment expenses, long-term secure property-like titles are indispensable.

A further problem is that the administration is not able to realise an urban planning and can hardly make proper application of the existing regulations: residential permits were issued unplanned in ecologically endangered zones without estimation of possible consequences for the health of the people affected and the environment, masses of illegal land sales are tolerated. All factors together create a situation of uncertainty and caution and encourage land-speculation.

Living in villages in the immediate vicinity of a town is acquiring a growing significance. Debt, fear of later expropriation by the State and high cash requirements demand the informal sale of land here. The effect of urban land tenure rights on rural land tenure and resource management can be demonstrated. As a result of the zoning of these places, old owner-user relations were either cancelled or put into question. Owners demand land back and accumulate tracts. Land speculation is spreading and raises the legal uncertainty of all non-owners.

The preservation of State forests and permanent disputes between the involved parties belong to the toughiest problems of resource management in Benin. The forest legislation, even in its most recent version under the influence of international donors, is still dominated by thoughts of protection of forests against potential expoiters. But in contrast to earlier laws it gives the local population tightly limited, but clearly defined exclusive rights of utilization of forest resources. This is the first step towards re-recognizing the rights of neighbouring groups. Participatory approaches of common utilization of forest resources by neighbouring groups must pay attention because the number of involved actors is large and because local (farmers, hunters, bee keepers) as well as non-local groups (mobile livestock keepers, wood and charcoal traders) must be taken into account.

Customary rights and resource utilization are getting more intensively involved in questions of water and fish resources. There exist a sophisticated system of property rights with bequeathing, mortgaging and the secret sale of catching grounds. The consequences are permanent border conflicts and over-fishing.

With democratisation and structural adjustment, Benin moved into the centre of focus in the discussion over decentralisation. It interferes heavily with existing property rights, newly defines them, creates new authorities and thus touches upon long-term resource utilization. Local administrative bodies would be able to make contracts independently and be able to get credit. They require all the more a sufficient tax revenue. Land tax will also be above all the central source of this revenue. Thus, land tenure and resource protection cannot be separated from fiscal considerations. Each community must also be the owner of the resources which are administered by it so that a real redistribution of resources from the central State is necessary for the new units. Problems such as how communal forests are to be preserved and protected and who should carry the costs have not basically been cleared up.

The potential for development cooperation which promotes environmentally oriented land tenure reform processes and sustainable resource management, arises out of these central problem areas.

Local/municipal level

a) Identifying and supporting of committees or associations for sustainable resource utilization and conflict management:

The involvement and strengthening of local autochthonous authorities is necessary for their success. Their vested interests must of course be taken into account. More and more, additional actors have to be tied into locally limited conflicts: non-locals and the State. For a lasting perspective, dovetailing and coordination with local and regional levels is necessary. Development collaboration must help in diffusing target conflicts here: on the one hand flexible local institutions are necessary, and on the other a minimal standardisation and legal security through the State.

b) Creation of greater clarity in land transactions:

This should not be limited to the sale of land, rather it should comprise more and more tenancy. Greater clarity in the village context means the inclusion or restoration of openness and public in resource transfers. Autochthonous institutions can serve as a starting point, further instruments like village land tenure plans are required.

c) Securing of ownership rights:

Incontestable certificated ownership rights are a necessary, but by no means sufficient condition for a long-lasting utilization of the environment. The setting up of a decentralised State land register which reaches individual villages is unrealistic at present. A pragmatic, informal approach with the participatory working out of a village land tenure plan ought to be given preference.

A particular challenge for development cooperation in environmental aspects is identifying the respective biases in the creation of legal security and being able to work against it: preferential treatment of the interests of urban owners, the establishment of rights of elders and men as owners in spite of the rights of youth and women, clear property rights to arable land, 'grey areas' in grazing lands near villages, forests.

d) Secure tenancy conditions:

Trust and stability in leasing relations are fundamental prerequisites for a utilization form which not only has 'soil mining' as its target. If it were at least possible to fix and to specify clear regulations with regard to the duration of a contract using witnesses or written confirmation, this would be a step toward a growing willingness to invest.

e) Promotion of integrated land use systems:

A need for action exists in the working out of the questions of who uses which resources, who is willing to invest, how will the yields be divided up. It is really to do with the new establishment of property rights. What will be decisive here is how the interaction of all those involved in the process can be institutionalised through external support, i.e. how it can be standardised and stabilised in the longer term?

Regional level

The applications at the local level require the harmonising and coordinating at a superordinate level: the existing land register in Benin is not for disposition. Thus there exist the urgent need to decentralise the 'Service des Domaines' at least at the province level. The existing practice of informal land sales with confirmation through the Administration should on the other hand be coordinated and documented at the district level. Minimum uniform requirements for written agreements (see above). A land use planning which also respects the rights of way and utilization rights of livestock keepers cannot be carried out uncoordinatedly each time at the village level. Transhumants overstep administrative borders so that a consistent plan at the provincial level is an urgent need.

National level

This affects in particular the planned working out of a comprehensive statute book for rural areas, the 'Code Rural'. Should this prove to be lasting and practicable, information gaps must be closed, above all in regard to the current arrangements of livestock keepers and agriculturalists. In a to date centralist State without strong regional administrative bodies, an improved flow of information and communication is an indispensable prerequisite for planning. In order to obtain information from the villages about current land tenure practice and problems which are coming up, considerably closer cooperation is needed with the legislator.

At the same time, the legislator will be forced to decide whether an only very generally kept to law of orientation is formulated and a broader leeway will remain for local and regional regulations by decree, of whether a detailed set of rules should exist. Development collaboration would help to stimulate this mutually information flow in the first place and also to institutionalize it at long term.

Sector level

A reorientating of land tenure and resources policy cannot be made without coordinating with priorities of agricultural policy: price policy for the most important products for sale, marketing policy (maize vs. cotton) and applied agricultural research. There is a great need for coordination and moderation.

From these needs the following recommendations for a process oriented participatory cooperation.

The future forming of property rights for the preservation of resources will remain less and less restricted to rural areas; urban groups increasingly through purchase and sale gain influence over the ways in which resources are utilized.

Sector and regionally comprehensive programs

In Benin there already exist long-term programs encompassing sectors and regions which expressly serve resource preservation. A key role at present is played by the 'Projet de Gestion des Ressources Naturelles'. Its land tenure related activities will be treated as an experimental open, pragmatic initiative which includes learning processes. At the end will be a plan of land tenure in the participating villages in which the property relationships are documented.

A precondition is that open legal questions get resolved and existing legal disputes are dealt with in a negotiation phase. The presented plan must be expressly approved by the village community. The register will serve as publicly accessible source of information in cases of transfers and trials. The role of non-local resource users will be of crucial importance. Informal village land tenure plans facilitate as well the decision making for financial cooperation.

Initiatives in rural areas

a) (Village) land use planning

Individual projects of the development cooperation have begun with the setting up of local institutions the promotion of land use planning. In this there is a particular function for the future of these projects. The 'Projet Promotion de l'Elevage dans l'Atakora' (GTZ) has stimulated processes for common land use planning between agriculturalists and livestock keepers in pilot zones. The project functions as moderator and mediator and tries to support autochthonous authorities who take responsibility for settling conflicts and thus strengthen local independent environmental institutions at long term.

Along with this there are programs such as the one for well construction from the German Development Service (DED) in which more and more the utilization of water resources has moved into the centre of activities (seasonal water removal, water fees etc.). Support is necessary for the existing projects in the working out of such initiatives as well as the widening of existing areas of work.

b) Coordination of committees on the national level

In the majority these local institutions show identical structures and methods of working. The core of their work is formed by identical problems. In view of the multitude of initiatives, there is a lack of a summarising and comparing analysis of facts and the chance of giving the results back to the committees, so that learning processes can be accelerated and unnecessary duplication can be avoided.

Thus, a supportive coordination and accompaigning at the national level fulfils at least two functions: 1. Collection of information regarding the founding and everyday work of committees as well as the exchange of information between them. What could be led off from that would be locally applicable techniques of monitoring and sensibilisation as well as the offer of competent support in the case of blockages. 2. The identification of land tenure limitations and land rights practices, which completely hinder the work of the committees. With that, a close collaboration with State legislation is necessary in order to turn the gathered information into the land tenure legislation process.

c) A narrower dovetailing between land tenure, resource management and agricultural policy: Agricultural research urgently requires a broader impulse in order to cushion the transition from extensive, land consuming systems to more intensive ones. Endogenous innovations must be given enough attention. When trees are brought into the systems, limits are quickly reached in the presence of widespread tenancy. Even if property rights of tenants can be secured and strengthened, it will not allow a systematic utilization of trees until the next generation.

d) The future of former state farms

With its restitution and reorganisation a reform process could be started which is strictly oriented towards environmental requirements. Only here a demand for a land reform can be derived. German development cooperation could accompany the process of the new determination of State land at the national level, also in view of the recent experience with the transformation of property rights systems after the German Unification. It must be made clear which legal status former owners may retain. External cooperation would as an 'honest broker' and facilitator, thereby acquiring the task of supporting the process of negotiation between the State, directly affected individuals and villages communities as well as other interested groups (urban dwellers). A satisfactory solution of the restitution question may positively influence any-long term commitment of financial cooperation in these fields.

Initiatives in urban environs

a) Taxation and land tenure questions: The taxing of property is a key point on the revenue side of municipalities. Its significance will increase when they become increasingly independent in the course of decentralisation. Accordingly projects like the 'Registre Foncier Urbain' (RFU) are firstly concentrating its activities on the target of raising tax revenues. And with the setting up of urban land registers, they always also pursue the aim of securing land tenure in urban environs. Thus tasks for external cooperation also lies in the planning and supporting of the implementation of the legal and political instruments for the increase of legal security in the case of access to and utilization of landed resources in towns.

b) Environmental requirements and land taxes: Via municipal land tax a contribution of users to the costs of environmental measures can be achieved. Tying together duties and fees to the raising of taxes offers big advantages concerning a simple fixing of the tax basis and collection of taxes. Beginning in the cities at least, development cooperation can collaborate in an advisory capacity in the working out of models in which ways citizens must be involved in the costs of the maintenance of the environment.

c) Property rights and environmentally oriented urban planning: At present the most important responsibilities in the area of urban planning are allocated to three different Ministries without an institutionalized coordination. Technical cooperation can for one thing help to identify deficits in the execution and control of legal rules within ministerial bureaucracy. What is more there exists the need for the working out of sector comprehensive planning instruments: For example how already settled ecological problem zones can be preserved or in the future can be protected from illegal settlement.

 Strengthened interrelation between urban and rural areas

Through the zoning of land in towns with a rural character, urban land tenure practices get put into action very quickly. Legislation must bear considerably more strongly in mind that this interrelationship is growing closer. Developmental collaboration can make a contribution here: identifying contradictions and blockages which arise when urban oriented land tenure and environment protection laws in the rural environment become effective, or when utilization rules overlap one another. At the same time, external cooperation should work out and offer instruments just as also in rural areas procedures for land zoning can be dovetailed with programs for the maintenance of natural resources (making use of "enclosure movements").

About the necessity of a comprehensive land tenure and resource rights policy

In view of the presented legislative conditions and ministerial responsibilities, the formulation of a unified land tenure in the framework of the 'Code Rural' would possibly have to have been enforced against the resistance of interest groups. Development cooperation should contribute to the rationalisation of discussion at the national and regional levels, establishing and moderating a forum which once again thoroughly and critically analyses the pros and cons or such an comprehensive legal plan. Accordingly, two models form the extremes: further development of the existing legal framework or working out a comprehensive statute book. Highly qualified moderating and facilitating by local staff should be encouraged through training programs (DSE).

The execution of these recommendations is associated with problems and risks of non-cooperation.

Village land use planning

a) Overestimating the capacities of committees for resource management: If the social relations and institutions within a community are already strongly eroded, then the committees come up quickly against their limits in dealing with these conflicts. The same applies when conflicts are antagonised first and foremost by non-locals who only submit themselves to local rules very unwillingly. Local committees have need of recognised local authorities. Their position in relation to resource management has partially changed. They are no longer inevitably alone trustees of future generations and protectors of land tenure rights. The way they see themselves as authorities and leaders does not necessarily fit participatory, democratic initiatives.

In the case of resources for the management of which there are no evolved structures or historic models for consensus forming through committees or authorities, the prerequisites for the fostering of such organisations must be less favourably judged. That applies above all to the utilization of forest resources. Long-term weakened or interrupted communications and negotiations can make the fostering of committees more difficult. For all cases conditions are deducted how to reduce these principal risks.

b) Overestimating of the willingness of the State to decentralise responsibility: There remains to clarify how much independence will be afforded to the committees by the State administration. Thus the challenge for development cooperation also exists in particular in being able to secure local initiatives at all administrative levels with framework guide-lines and a constant flow of information from 'below' to 'above'.

c) The mistrust of those involved in processes towards participatory initiatives: A danger for the fragile trust relationship between citizens and the State lies in the misuse of politically sensitive information by the Administration. Programs for the informal registration of village land tenure are built up on strict participation and a voluntary nature. Regional administrative bodies could misuse this information in order to drain a well developed tax source in times of grave financial emergency.

The urban area

A consistent environmentally oriented planning becomes hindered by technical and organisational bottle-neck. There is a relatively high percentage of properties with residential entitlement for which no owner could be ascertained since an unannounced further sale was ongoing. Intentions for planning become so delayed or require regulations which have to be dealt with in such cases. In the towns as well there exists in the future more than ever the danger that income tax and duties will not be spent for measures dealing with the environment, but rather with merely the bridging of the most pressing financial problems (consciously plotting of ecologically endangered locations in order to increase tax revenue).

The national level

External cooperation in the working out of basic laws for resource maintenance can be impaired by the very diverse basic understanding of the functions of such legal frameworks. Basic laws can acquire the character of decrees and regulations in taking care of all eventualities and constrict the leeway for design. The lack of will of the Administration can manifest itself in this, to relinquish a part of the State power in accordance with the subsidiary principle at lower levels.

Putting decentralisation into action

Should decentralisation by carried on, it will bring with it numerous frictions and transitional problems. The danger exists that the goals of resource maintenance will become subordinated to fiscal pressures. Municipalities must finance themselves through land taxes, sustainable resource utilization patterns will become subordinated to these needs.